DOBSON — One media law expert says the methods used by the Surry County Board of Commissioners to fill the seat of Commissioner Garry Scearce, who died on July 22, appear to be in violation of the state’s open meeting laws.
A notification was sent out to media outlets Monday saying that an announcement to fill the empty seat would be made during a press conference today at 4 p.m. at the Surry County Republican Headquarters on North South Street in Mount Airy.
The announcement of Scearce’s replacement comes weeks before the board will convene in open session to vote on the appointee.
According to North Carolina open meeting laws, which can be found in North Carolina Code section 143-318.11, “a public body may not consider the qualifications, competence, performance, character, fitness, appointment, or removal of a member of the public body or another body and may not consider or fill a vacancy among its own membership except in an open meeting.”
North Carolina code goes on to say that, “final action making an appointment or discharge or removal by a public body having final authority for the appointment or discharge or removal shall be taken in an open meeting.”
Contacted about the issue yesterday, Board Chairman R.F. “Buck” Golding declined to comment on how the board came to its decision, saying only that, “I’ll tell you tomorrow,” before abruptly hanging up the phone.
County Attorney Ed Woltz said Wednesday afternoon that the board consulted with him “regarding the procedure,” but even he doesn’t know who commissioners have selected to fill the seat.
“My understanding is that, while I wasn’t part of it, that the board consulted amongst itself one on one, which is totally permissible under the laws of the state of North Carolina,” he said, noting that as long as only two board members are present, it doesn’t count as a meeting.
“Nothing prohibits one commissioner from discussing with another commissioner whatever they’d like to discuss,” he added.
Woltz said that the board isn’t officially appointing the candidate to the seat until its Aug. 20 meeting, which means the final decision will be made during open meeting.
He said that during all the closed sessions he has attended, the issue of Scearce’s replacement hasn’t been raised.
“My understanding is that they consulted among themselves individually,” he said. “Unless you have more than two at a time and they’re carrying on county business, there is not a meeting.”
But Amanda Martin, an attorney who teaches media law and serves as general counsel for the North Carolina Press Association, said that while that is true, previous litigation indicates that the action could be in violation of open meeting laws.
She pointed to a suit litigated in Jacksonville. In that suit, a board met on a one-on-one basis to consider employee raises and then took action as a result of those one-on-one conversations.
“The court of appeals said that they couldn’t act as a result of one-on-one conversations,” she said, adding that the precedent should apply to the Surry County action as well, since they issued a press release notifying the media that they were going to make an announcement during today’s press conference.
“They’re trying to get cute by saying that this isn’t their final decision,” Martin said, “but it’s playing like the decision has been made. I would say that this is a violation of the open meeting law.”
Shortly after the press conference was announced, Commissioner Paul Johnson said the board itself is in uncharted waters, but was adamant that no one is trying to pull a fast one.
“We’re doing everything we’re doing straight by the state statutes,” he said. “Both the state and county Board of Elections have given us advice, as well as the county attorney.”
Reach Keith Strange at firstname.lastname@example.org or 719-1929.